When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. For instance, if a patron falls on the front steps at a restaurant, evidence that the restaurant subsequent changed the lighting or added a handrail to the steps would be inadmissible under the rule. And if a child chokes on a toy, evidence that the manufacturer subsequently made the toy bigger would be inadmissible under the rule. As the recent opinion of the United States District Court for the Southern District of New York in Hamilton v. City of New York, 2009 WL 2973007 (S.D.N.Y. 2009), makes clear, however, the rule also applies to changes to allegedly discriminatory hiring practices.

Whether the court of appeals incorrectly applied Colorado Rule of Evidence 703 in holding that expert testimony about opinions based in part upon the results of polygraph examinations should not be admitted.

[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

And the recent opinion of the Arizona Court of Appeals, Division 2 in State v. Georgatos, 2009 WL 2883059 (Ariz.App. Div. 2 2009), provides a good example of when the rule applies.

In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his alleged commission of some crime, such as fraudulently obtaining documentation, and not simply based upon his immigration status, that witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

Unlike its federal counterpart, NRS 50.090 -- Nevada's rape shield law -- only applies in criminal cases. Does that mean, however, that judges in civil cases are precluded from precluding discovery regarding a civil plaintiff's sexual history? According to the recent opinion of the Supreme Court of Nevada in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the answer is "no."

It is well established that rules of evidence do not apply at administrative proceedings. That is not to say, however, that such rules are irrelevant at such proceedings. For instance, hearsay is admissible at administrative proceedings, but under the residuum rule, factual findings at such a hearing cannot be exclusively based on inadmissible hearsay, as was made clear by the recent opinion of the Court of Appeals of Utah in Benitez v. Department of Health, Div. of Health Care Financing, 2009 WL 2902518 (Utah.App. 2009).

-Cynthia L. Fountaine (Have License, Will Travel: An Analysis of the New ABA Multijurisdictional Practice Rules, 81 WASHINGTON UNIVERSITY LAW QUARTERLY 737 (2003), Article III and the Adequate and Independent State Grounds Doctrine, 48 AMERICAN UNIVERSITY LAW REVIEW 1053 (1999)) of Texas Wesleyan; and

Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our name. This expansion recognizes the often blurry line between civil procedure issues and federal courts/federal jurisdiction issues, for both academics and practitioners. But the new name does not mean we'll be covering only federal civil procedure. We're interested in civil procedure in all its forms--state, federal, foreign, transnational. We hope you find the Civil Procedure & Federal Courts Blog to be a valuable resource. And if readers come across bloggable developments that we've missed, please feel free to let any (or all) of us know; our contact info appears at the left. Folks who are interested in guest blogging are also encouraged to contact us. Enjoy!

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

According to the Court, this was the case because none of the alleged juror misconduct constituted extraneous prejudicial information or an improper outside influence. The court did note, however, that the Rule only precluded post-trial impeachment of verdict by jurors, not post-trial impeachment of verdicts by non-jurors. And in the recent opinion of the United States District Court for the Eastern District of California in Anderson v. Terhune, 2009 WL 2462398 (E.D. Cal. 2009), the petitioner had non-juror evidence that a juror fell asleep during portions of his trial. And yet, the court somehow found that this evidence was insufficient to award the petitioner relief.